LAW ON ELECTIONS - AGPALO CHAPTER I INTRODUCTORY
1.1 THE BASIC LAW ON ELECTIONS Omnibus Election Code (BP 881) – basic and fundamental law on elections RA 6646 – reenacted the Omnibus election Code via 1987 Consti COMELEC – authorized by the Consti to enforce all election laws
1.2 ELECTIONS, GENERALLY ELECTIONS – embodiment of the popular will; the expression of the sovereign power of the people; involves the complete ascertainment of the expression of the popular will, embracing the entire range, from deposit of the ballot to the final ascertainment and certification of the result. ANY ELECTION ( in Consti or Election Code) – refers to ALL elections in the country REGULAR ELECTION (whether National/Local) – refers to one participated by valid voters VALID VOTERS: o Possess the right to vote o Not disqualified o Registered NB: SK election is NOT a ‘Regular’ election because it is only participated by the youth (ages 15-21), some of whom are not qualified voters to elect local or national elective officials. SPECIAL ELECTION – held where: a) there is a failure of election on the scheduled date of regular elections in a particular place; b) conducted to fill up certain vacancies, as provided by law 1.03 PURPOSE OF ELECTION: PREVENT OR MINIMIZE ELECTION FRAUDS To enable the electorate to choose the people who would run their Gov’t, whether: o National o Municipal o Provincial o City o Barangay Presumption is that all the provisions of the election laws have a purpose and should be observed. (Lino Luna v. Rodriguez)
According to Pangandaman v. COMELEC, the purpose is to protect the integrity of elections to suppress all evils that may violate its purity and defeat the will of the voters. ‘Clean elections control the appropriateness of the remedy’ CHAPTER II THE COMMISSION ON ELECTIONS
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COMELEC AS INDEPENDENT BODY COMELEC – a constitutional body entrusted with the enforcement of the election law and the inquiry into and the resolution of dispute or controversy dealing with elections, other than those expressly withheld. Main task of COMELEC: ensuring free, orderly and honest elections Basis: Universal recognition that expertise is more easily acquired if the work entrusted to an office is of a specialized kind. To ensure the expertise, the Constitution instituted a rotational plan in the appointment to the Commission: o The appointment of three Commissioners (including the Chairman) every regular appointment date by having the first set of Commissioners have a term of 7 (3 Commissioners) – 5 (3 Commissioners) – 3 years (1 Commissioner) NB: Each succeeding Commissioner shall have a term of 7 years. Conditions of the rotational plan: o Terms of the first Commissioners start on a common date. o Any vacancy due to death, resignation or disability before the expiration of the term should only be filled for the unexpired balance of the term.
2.05 MEASURES DESIGNED TO MAKE THE COMMISSION INDEPENDENT How independent? o Beyond the executive to control o Beyond the legislative to abolish o Beyond the Supreme Court to supervise …except as provided in the Constitution. Measures: 1. Chairman + Commissioners are given fixed terms, without reappointment 2. Salaries not be decreased during their continuance in office
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Not engage in: o Practice in any profession o Management of any business o Financially interested D/I in any contract/franchise/privilege granted by the Gov’t/subdivision/agency/instrumentality/GOCC 4. Can only be removed by impeachment Basis: o Conviction or culpable violation of the Constitution o Treason o Bribery o Other High Crimes o Graft and Corruption The members of the Commission must be independent by the very nature of their duties and responsibilities. It is intended to assure the honest, fearless and uncompromising interpretation and enforcement of election laws. POWERS, GENERALLY Basis: Article 9-C of the Constitution (basically the all provisions under COMELEC – with its powers and functions found in Section 2) Powers may be classified into all 3 powers: o Executive – refers to the enforcement and administration of the election laws o Legislative – refers to the issuance of rules and regulations to implement the election laws and to exercise of such legislative functions as may be expressly delegated to it by Congress o Judicial Power to resolve controversies that may arise in the enforcement of election laws Be the sole judge of all pre-proclamation disputes Be the sole judge of all contests relating to the elections, returns, and qualifications of all regional, provincial, and city officials TO ENFORCE AND ADMINISTER ELECTION LAWS The COMELEC’s general power of administration, enforcement, and supervision is the basis that provides the necessary safeguards and remedies against election frauds that election laws fail to provide.
Why? Diversity of such frauds and anomalies surpasses legislative anticipation (Innovative kasi masyado!) However, although it has broad powers, COMELEC has no competence to act outside the statutes and administrative orders. Scope of powers: o Election Laws o Constitution
2.08 TO ADOPTMEANS TO INSURE FREE, HONEST AND ORDERLY ELECTIONS COMELEC must do everything in its power to secure a fair and honest election. Therefore, it has freedom in adopting means and methods to insure such accomplishment. GR: Choice of such means by COMELEC should not be interfered by the SC EX: If such means are illegal or constitutes GAD Basis: Presumption of regularity to achieve its duties properly. 2.09 TO EXERCISE ADJUDICATORY AND ADMINISTRATIVE POWER COMELEC has adjudicatory and administrative powers. Review: Adjudicatory = investigation of facts, holding of hearings and drawing conclusions from them as basis for official action and to exercise discretion. Example: W/N candidate is entitled to use a particular nickname; W/N votes for such candidates under such nickname NB: COMELEC, although acting as a quasi-judicial tribunal, CANNOT ignore the requirements of procedural due process in resolving election cases. Adjudicatory powers of COMELEC: o Basis: Sec 2 (2) of Art 9-C Exercise original exclusive original jurisdiction – all contests relating to the elections, returns, and qualifications of all elective regional, provincial, and city officials Appellate jurisdiction – all contests involving elective municipal/(barangay) officials decided by trial courts of general/ (limited) jurisdiction. Administrative powers of COMELEC: o Includes all administrative matters, since COMELEC is also an administrative body.
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LAW ON ELECTIONS - AGPALO Example: Questions concerning COMELEC’s choice of an appointee to occupy a position. 2.10
JURISDICTION OF COMELEC IN DIVISION; EN BANC Basis: Section 3 Article 9-C COMELEC may sit en banc or in two divisions Promulgate its own rules of procedure to expedite disposition of election cases, including pre-proclamation controversies. All election cases = heard and divided in Division; but if there’s an MR = en banc COMELEC en banc DOES NOT have authority to hear and decide election cases, including pre-proclamation controversies, in the first instance (it belongs to a COMELEC Division). If it does, decision = VOID! Remember: en banc is for MR’s only of division’s resolution! Cases before a Division may only be entertained when the required number of votes to reach a decision is obtained in the Division. GR: All election cases, either directly filed with COMELEC or appealed from boards of canvassers, the resolution of which requires the exercise of quasi-judicial power, must first be heard by COMELEC in Division; MR to Decision of such Division is resolved by COMELEC en banc. EX: 1. When what is involved in the case is purely administrative Examples: o Corrections of errors in the tabulation or tally of results by the board of canvassers o Correction of manifest errors by the board of canvassers o The registration of voters o Questions whether elections have been held or whether certain returns were falsified therefore should be excluded from the canvass 2. When the required number of votes to reach a Division decision is not obtained (However, a 2-1 decision is valid) 3. Where petitioner invoked the jurisdiction of the COMELEC en banc, participated in its proceedings and sought reliefs 4. Section 4, RA 7166: petitions for postponement or for declaration of failure of elections
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When COMELEC en banc conducts preliminary investigation, by virtue of its prosecutor power, deciding W/N there exists a probable cause JURISDICTION OVER PETITIONS FOR DISQUALIFICATION COMELEC has NO jurisdiction: petitions for DQ of elective barangay officials filed before the election. COMELEC merely has appellate jurisdiction. NB: It is the MTCs which has jurisdiction COMELEC HAS jurisdiction: municipal, provincial, city, congressional, senatorial, vice-presidential, presidential filed before elections. If filed after elections: COMELEC has NO MORE jurisdiction should DISMISS the petition for DQ. o But, COMELEC may refer such matter to its Law Dept for preliminary investigation. So, here's when COMELEC can alter an after-elections case: o Law Dept finds prima facie case of guilt o Corresponding Information filed in appropriate court o Winning candidate not yet proclaimed o Complainant files a petition for suspension of proclamation o Court may order suspension if evidence of guilt is strong Section 6, RA 6646: The proclamation of a candidate sought to be DQ is suspended ONLY if there’s an order of the COMELEC suspending the proclamation. So, the mere filing of petition for DQ before the election is NOT a ground to suspend the proclamation of the winning candidate. NO SUSPENSION ORDER = WINNING CANDIDATE STILL THE WINNER. VOTES REQUIRED IN ADJUDICATION OF ELECTION CASES 2-1 decision of a Division = VALID NB: If COMELEC en banc has only 5 members, affirmation of 3 members of the 2-1 decision = VALID If COMELEC en banc equally divided/no majority, case will be reheard. If after rehearing, and still no decision is reached: o In original actions – action is DISMISSED. o In appealed cases – judgment/order appealed is AFFIRMED o In all incidental matters – petition/motion DENIED. If at the time of promulgation of the decision, a Commissioner has vacated his office, his vote is automatically withdrawn/cancelled.
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LAW ON ELECTIONS - AGPALO NB: Even if he expressed his intention before vacating (or dying), what is important is the DATE OF PROMULGATION. 2.13
PETITIONS FOR REVIEW TO SUPREME COURT GR: Decision/order/ruling of COMELEC en banc, in the exercise of its quasi-judicial functions, may be brought to the SC on certiorari (Rule 64 and 65) within 30 days from receipt of copy.
Possible life cycle of election cases COMELEC COMELEC SC Division en banc Petition for certiorari of COMELEC en banc/Division* decision. All election cases MR of including pre- COMELEC *Where Division has committed proclamation Division GAD in issuing interlocutory controversies. decision order relative to an action pending before it and time is of the essence to secure judicial relief from SC
Although according to Section 2(2) of Art 9-C, Decisions/orders/rulings of COMELEC in contests involving elective municipal and barangay officials shall be FINAL an UNAPPEALABLE, it does NOT DIVEST SC of its authority to resolve questions of law of such decisions, under Rule 65.
2.14 TO EXERCISE APPELLATE JURISDICTION AND TO ISSUE WRITS COMELEC has exclusive appellate jurisdiction over all contests involving: o Elective municipal officials decided by RTCs (trial courts with general jurisdiction) o Elective Baranagay officials decided by MTCs (trial courts of limited jurisdiction) COMELEC has authority to issue the extraordinary writs of certiorari, prohibition and mandamus in aid of its appellate jurisdiction.
2.15 TO EXERCISE LIMITED AUTHORITY REGARDING BARANGAY ELECTIONS The authority of COMELEC over Barangay officials is limited by law to SUPERVISION. o Why? COMELEC has jurisdiction over popular elections, where the elected officials are determined through the will of the electorate. In Barangay elections, the elected punong barangay are voted upon by their respective members only. 2.16
TO DECIDE ALL QUESTIONS AFFECTING ELECTIONS Basis: Section 3, Art 9-C: o Power to decide, except those involving the right to vote, all questions affecting elections, which includes: Determination of the number and location of polling places NB: this is not a general grant of discretion but a power to act in accordance with the law. Appointment of election officials and inspectors Registration of voters
2.17 TO EXERCISE SUPREVISION AND CONTROL OVER ELECTIVE OFFICIALS Basis: Section 52(a), Omnibus Election Code COMELEC exercises direct and immediate supervision and control over: o National officials o Local officials o Members of any national or local enforcement agency and instrumentality required by law to perform duties relative to the conduct of elections. The power of direct supervision and control includes the power to review, modify or set aside any act of such national and local officials. Example: COMELEC may relieve an officer/employee who violates the election laws or fails to comply with its instructions and appoint a substitute. Such power includes the authority to initiate motu proprio (by itself) such steps or actions as may be required by law.
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LAW ON ELECTIONS - AGPALO 2.18 TO SUPREVISE AND CONTROL BOARDS OF ELECTION INSPECTORS AND CANVASSERS COMELEC exercises immediate supervision and control over the boards of election inspectors and canvassers, and can require that the latter perform their functions. Includes the power to revise, reverse or set aside the action of the boards. NB: This is notwithstanding the fact that if such questions have not been elevated to COMELEC Why? can initiate motu propio such actions. 2.19 TO RELIEVE ELECTION INSPECTORS AND CANVASSERS AND SUBSTITUTE THEM Members of the boards of election inspectors and canvassers are election officials any vacancy, temporary or permanent can be filled only by COMELEC. Power of supervision and control includes the power to relieve (and appoint a substitute). Example: Disobedience of Canvasser = Sisante ka boy! 2.20 TO SUSPEND OR ANNUL CANVASS AND PROCLAMATION GR: COMELEC has the power to annul an illegal canvass (and an illegal proclamation, as well as the authority to suspend the canvass and proclamation of winning candidates. EX: If such annulment/suspension was without notice or hearing. A proclamation by the board of canvassers in defiance of COMELEC’s suspension order is VOID. 2.21 TO ANNUL REGISTRY LIST OF VOTERS; DETERMINATION OF RIGHT TO VOTE Remember: Questions which involve the right to vote – Courts Questions which DOES NOT involve right to vote – COMELEC Questions of the right to vote: refers to the administration of whether or not a person can exercise or is precluded from exercising the right to suffrage. Examples: o Question of inclusion or exclusion from the list of voters COMELEC has the power to decide administrative questions concerning the registration of voters, which includes the
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authority to annul illegal registry lists of voters. (This doesn’t involve a question of the right to vote) Other Questions where COMELEC has jurisdiction: o Power to exclude falsified, tampered, or coerced election returns from certain polling places or political units o Whether elections have been held o Inquiry of COMELEC to the commission of election anomalies by individuals But once they find out who these individuals are, they can’t disqualify them from their right to vote. TO REGISTER POLITICAL PARTIES; DECIDE LEADERSHIP Basis: Section 2(5), Article 9-C Power to register political parties Power to require candidates to specify in their certificates of candidacy their political party affiliation Allow political parties to appoint watchers Limit expenditures of political parties Determine whether their registrations should be cancelled in appropriate proceedings The determination as to whether a party is a political party entitled to registration is an EXCLUSIVE power of COMELEC.
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TO INVESTIGATE AND PROSECUTE ELECTION OFFENSES COMELEC has exclusive authority to investigate and prosecute before the regular courts election offenses, whether committed by public officers or private persons. REASON: If they don’t have this power, it would seriously impair the effectiveness in achieving their goal of having fair and honest elections. NB: Election offenses committed by election officials in relation to their office can ONLY investigated and prosecuted by COMELEC (and not by the Ombudsman/Sandiganbayan/Courts). COMELEC can conduct preliminary investigation (or deputize such investigation) for election cases for the purpose of helping the judge determine probable cause and for filing an Information. But once the information has been filed, the control and disposition of the case rests with the Judge and NOT with COMELEC anymore.
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TO SUBPOENA AND TO GRANT IMMUNITY FROM SUIT Basis: Section 26, RA 6646 COMELEC has authority to issue subpoena and grant immunity from criminal prosecution.
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TO PUNISH FOR CONTEMPT COMELEC has the power to cite for contempt a person for contemptuous acts (as stated in the ROC) and impose penalties. Example: Any violation of any final and executory decision of COMELEC However, COMELEC can only punish for contempt when it is exercising judicial or quasi-judicial functions. If discharging administrative or ministerial functions = NO AUTHORITY to punish for contempt.
2.26 TO MAKE ADJUSTMENTS IN REAPPPORTIONMENT OF DISTRICTS COMELEC has the power to make minor adjustments of the reapportionment of districts. But it does not have the power to transfer a municipality from one congressional district to another it is a Legislative prerogative. COMELEC also has the power to adjust the number of members apportioned to a province out of which a new province was created or where the city, whose population has so increased, is geographically located. But such adjustment must not be made within 120 days before the election. 2.27 TO RECOMMEND ADMINISTRATIVE DISCIPLINARY SANCTIONS COMELEC may recommend disciplinary action against any officer deputized by it to help in the enforcement of election laws, who fails to comply with its instructions or violates any election laws. But it must first conduct an administrative inquiry to ascertain such act. 2.28
TO ACT AS BOARD OF CANVASSERS FOR SENATORS Basis: Section 2, EO 144
Chairman and members of COMELEC en banc shall be the National Board of Canvassers for the election of Senators. It shall canvass all certificates of canvass coming from and prepared by the district, provincial, and city boards of canvassers. Generally, such canvassing of votes is only a ministerial duty for COMELEC. Questions of illegal/fraudulent voting are passed on to another tribunal. But where the election returns are OBVIOUSLY manufactured (example: great excess of votes), COMELEC can exclude them from the canvass.
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TO ISSUE RULES AND REGULATIONS Basis: Section 6, Article 9-A Empowers COMELEC to issue rules and regulations Basis: Section 52(c) Omnibus Election Code Empowers COMELEC to issue rules and orders to implement the provisions of the Code. Basis: Section 30, RA 6646 Provides for the effectivity of regulations and orders of COMELEC o Takes effect on the 7 th day after their publication in the OG or in at least 3 daily newspaper of general Circulation o Orders and directives shall be personal delivered to all parties concerned within 48 hours and takes effect immediately upon receipt, unless a later date is expressly specified. CHAPTER III ELIGIBILITY OF CANDIDATES A. QUALIFICATIONS
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QUALIFICATIONS FOR PRESIDENT AND VICE PRESIDENT Requirements: (Sections 2 & 3, Art 7) o Natural –born citizen o Registered voter o Able to read and write o At least 40 years old at day of election
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Resident at least 10 years immediately preceding such election.
QUALIFICATIONS FOR MEMBERS OF CONGRESS Senator: (Section 3, Article 6) o Natural-born Citizen o At least 35 years old at day of election o Able to read and write o Registered voter o Resident at least 2 years immediately preceding election House of Representatives: (Section 6, Article 6) o Natural Born Citizen o At least 25 years old at day of election o Able to read and Write o Resident at least 1 year immediately preceding Party List representatives o Same as House + A registered voter in the district he is to be elected. QUALIFICATIONS OF LOCAL OFFICIALS Basis: Sections 39 & 40 of Local Gov’t Code (RA7160) Section 39: Qualifications o Citizen o Registered voter in the barangay, municipality, city, province, or in case of sangguniang panlalawigan/panlungsod/bayan, the district where he intends to be elected o Resident at least 1 year immediately preceding day of election o Able to read and write Filipino and other local language or dialect Additional qualifications for Candidates: At least 23 years old at election day o Governor o Vice-Governor o Member of Sangguniang panlalawigan o Mayor of highly urbanized cities o Vice-Mayor of highly urbanized cities o Members of Sangguniang Panlungsod of highly urbanized cities At least 21 years old at election day
Mayor of independent component cities, component cities, municipalities o Vice Mayor of independent component cities, component cities, municipalities At least 18 years old at election day o Member of the Sangguniang panlungsod/bayan o Punong Barangay o Member of Sangguniang barangay At least 15 years old but not more than 21 years old at election day o Sangguniang Kabataan Section 40: Disqualifications o Sentenced by Final Judgment for an offense involving moral turpitude or for an offense punishable by 1 year or more of imprisonment, within 2 years after serving sentence. o Removed from office by an Administrative case o Convicted of Final Judgment for violating oath of allegiance to RP o Dual Citizens o Fugitives from justice in criminal/nonpolitical cases here/abroad o Permanent resident in a foreign country or those who acquired the right to reside abroad and continue to avail of the same right after effectivity of this Code o Insane or feeble-minded o
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AGE REQUIREMENT The age requirement is mandatory. Even if elected, it will not make the age requirement directory nor will it cure the invalidity. *See previous notes on the age requirements of public Officials
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CITIZENSHIP QUALIFICATION Types of Citizenship: o Natural Born – by birth; without performing any act o Naturalization – underwent process/act of naturalization Officials who must be Natural –born o President o Vice President o Members of Congress Officials who need at least naturalization
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o Elective local officials NB: Citizenship requirement counted from time of proclamation/start of term Who are deemed Citizens (Section 1, Article 4) 1. Citizens at the time of adoption of ’87 Consti 2. Those whose fathers or mothers are citizens 3. Those born before Jan 17, ’73 of Filipino mothers, who elect Philippine citizenship upon reaching the age of majority (deemed natural-born) 4. Those who are naturalized in accordance with law. A Filipino citizen who lost his natural-born citizenship by naturalization abroad may reacquire his Filipino citizenship by: o Naturalization o Repatriation by filing a petition for repatriation under PD 725. When granted, it retroacts to the filing of the petition. NB: results to the recovery of the original nationality (NaturalbornLost itRepatriationNatural-born againcan run for President). o Direct act of Congress DUAL ALLEGIENCE, AS GROUND FOR DISQUALIFICATION Basis: Section 40, RA 7160 DQs from running for any elective local position those with dual citizenship NB: In this sense, dual citizenship = dual allegiance. Therefore, persons with mere dual citizenship are not prohibited. Illegitimate Children of a Filipino mother + Common law Foreigner dad = Filipino citizens NB: recognition of Foreigner dad doesn’t divest children of being Pinoy + it is not of the grounds of losing such citizenship. Illegitimate Children of Foreigner Mom + Filipino father who recognizes the children as his own = Filipino citizens DUAL CITIZENSHIP Dual Citizenship – Status of a person who is citizen of two or more countries at the same time. Arises from the concurrent application of different laws regarding a person’s citizenship. Instances dual citizenship happens:
Those born of Filipino mothers and/or fathers in foreign countries which follow the principle of jus soli o Those born in the Philippines of Filipino mothers and alien fathers if the laws of their father’s country, such children are citizens of that country o Those who marry aliens, if by the laws of the latter’s country, the former are considered citizens, unless by their act or omission they are deemed to have renounced Philippine citizenship. Latest law on Dual Citizenship: RA 9225 - Citizenship Retention and Re-acquisition Act of 2003 o
3.37 RESIDENCE REQUIREMENT * aimed at preventing a stranger or newcomer unacquainted with the conditions and needs of a community and not identified with the latter from seeking an elective post to serve that community and at excluding outsiders from taking advantage of favorable circumstances existing in that community for electoral gain RESIDENCE = DOMICILE – the individual’s permanent home, a place to which, whenever absent for business or for pleasure, one intends to return, and depends on facts and circumstances in the sense that they disclose intent. – Includes the twin elements of: 1) the fact of residing or physical presence in a fixed place; and 2) animus manendi, the intention of returning there permanently 3.38 CHANGE OF RESIDENCE To acquire new domicile by choice, there must concur: 1) residence or bodily presence in the new locality 2) an intention to remain there 3) an intention to abandon the old domicile There must be an animus manendi coupled with animus non revertendi. Purpose to remain: must be for an indefinite period of time Change of residence: must be voluntary Residence at the place chosen for new domicile: must be actual 3.39 THREE TERM DISQUALIFICATION
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LAW ON ELECTIONS - AGPALO Section 8 of Article X of the Constitution and Section 43 of the Local Government Code: no local elective official shall serve for more than three consecutive terms
Two requisites to come within the prohibition: 1) that the official concerned has been elected for three consecutive terms in the same local government post 2) that he has fully served three consecutive terms
Election in Section 8, Article X of the Constitution: refers to regular and not special or recall elections 3.40 LOCAL OFFICIALS ADMINISTRATIVELY GUILTY ARE DISQUALIFIED Rule: Removal cannot extend beyond the term during which the alleged misconduct is committed. If a public official is not removed before his term he can no longer be removed if he is thereafter reelected for another term. 3.41 A FUGITIVE FROM JUSTICE IS DISQUALIFIED Section 40 of the Local Government Code disqualifies a person from being a candidate for local elective office who is a fugitive from justice includes not only those who flee after conviction to avoid punishment but likewise those who, after being charged in the Philippines or abroad, flee to avoid prosecution. FLIGHT
FUGITIVE FROM JUSTICE
the evasion of the course of justice by voluntarily withdrawing oneself in order to avoid arrest, detention, or the institution or continuance of criminal proceedings
one who flees after conviction to avoid punishment, as well as one who, after being charged, flees to avoid prosecution not a fugitive from justice when, at the time of departure from abroad to the Philippines, there is yet no complaint filed against him abroad.
considered an indication of guilt
B. CERTIFICATE OF CANDIDACY 3.42 CERTIFICATE REQUIRED
The law requires that no person shall be eligible for any elective public office unless he files a sworn certificate of candidacy within the period fixed herein. May be withdrawn prior to the election by submitting to the office concerned a declaration under oath No person shall be eligible for more than one office to be filled in the same election, and if he files his certificate of candidacy for more than one office, he shall not be eligible for any of them However, before the expiration of the period for filing of COC, the person who has filed more than one certificate of candidacy may declare under oath the office for which he desires to be eligible and cancel the certificate of candidacy for the other office or offices.
CERTIFICATE OF CANDIDACY (COC) a formal manifestation to the whole world of the candidate’s political creed or lack of political creed a statement of a person seeking to run for a public office certifying that he announces his candidacy for the office mentioned and that he is eligible for the office, the name of the political party to which he belongs, if he belongs to any, and his post-office address for all election purposes being as well-stated provisions are mandatory but after elections, regarded as directory only to give effect to the will of the electorate may be amended before the elections, even after the date of the filing formal defects in a COC may not render the certificate invalid and may be cured by amending the certificate of candidacy 3.43 CONTENTS OF CERTIFICATE OF CANDIDACY Section 74 of the Omnibus Election Code provides what should be stated in the COC: The COC shall state that the person filing it is announcing his candidacy for the office stated therein and that he is eligible for said office; if for Member of the Batasang Pambansa, the province, including its component cities, highly urbanized city or district or sector which he seeks to represent; the political party to which he belongs; civil status; his date of birth; residence; his post office address for all election purposes; his profession or occupation; that he will support and defend the Constitution of the Philippines and will maintain true faith and allegiance thereto; that he will obey the laws, legal orders, and decrees promulgated by the duly constituted authorities; that he is not a permanent resident or immigrant to
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LAW ON ELECTIONS - AGPALO a foreign country; that the obligation imposed by his oath is assumed voluntarily, without mental reservation or purpose of evasion; and the facts stated in the COC are true to the best of his knowledge. Unless a candidate has officially changed his name through a court approved proceeding, a candidate shall use in a certificate of candidacy the name by which he has been baptized, or if he has not been baptized in any church or religion, the name registered in the office of the local civil registrar or any other name allowed under the provisions of existing law, or in the case of a Muslim, his Hadji name after performing the prescribed religious pilgrimage: Provided, that when there are two or more candidates for an office with the same name and surname, each candidate, upon being made aware of such fact, shall state his paternal and maternal surname, except the incumbent who may continue to use the name and surname stated in his COC when he was elected. He may also include one nickname or stage name by which he is generally or popularly known in the locality. The person filing a COC shall also affix his latest photograph, passport size; a statement in duplicate containing his bio-data and program of government not exceeding one hundred words, if he so desires. Note: Defects in the COC should be questioned before the election; may not be questioned after the election without invalidating the will of the electorate, which should not be done. 3.44 SUBSTITUTION OF CANDIDACY Section 77 of the Omnibus Election Code provides: If after the last day for the filing of COC, an official candidate of a registered or accredited political party dies, withdraws, or is disqualified for any cause, only a person belonging to, and certified by, the same political party may file a COC to replace the candidate who died, withdrew, or was disqualified. The substitute candidate nominated by the political party concerned may file his COC for the office affected in accordance with the preceding sections not later than mid-day of election day, said certificate may be filed with any board of election inspectors in the political subdivision where he is a candidate, or, in the case of candidates to be voted for by the entire electorate of the country, with the Commission. 3.45 SUBSTITUTION OF CANDIDACY; SUSBTITUTE MUST BELONG TO THE SAME PARTY where the candidate of a registered political party dies, withdraws or is disqualified by COMELEC, he can be substituted by a person
belonging to, and certified by, the same political party to replace said candidate no requirement that a substitute candidate must have been a member of the party concerned for a certain period of time before he can be nominated as such
3.46 WITHDRAWAL OF CERTIFICATE, REQUIRED FOR SUBMISSION a COC may, prior to the election, be withdrawn by the same person submitting to the office concerned a written declaration under oath GR: if not under oath – not a valid withdrawal and produces no legal effect; there is no withdrawal and he remains a candidate EX: when the withdrawal, which is not under oath, is actually made and accepted by the election registrar, as a result of which a substitute candidate files his certificate of candidacy in his place and receives the winning number of votes Withdrawal – effective upon submission to the office concerned Substitution – the withdrawal must be effected after the last day for the filing of COC. If withdrawal is made on the last day for filing the certificate, substitution is not allowed except when the withdrawal is filed on the last hour of the last day for filing of candidacy because for all intents and purposes such withdrawal has been substantially made after the last day. SUBSTITUTE – one who takes the place of another who is no longer a candidate, otherwise the former would be an additional, not a substitute candidate. 3.47 VALID CERTIFICATE OF CANDIDATE SUBSTITUTED IS REQUIRED Sect 77 of OEC: Substitution of a candidate may be permitted where the requisites thereof are complied with (e.g. the candidate to be substituted by another must have a valid COC duly filed with the COMELEC, and a candidate whose COC has been denied due course and cancelled under Sect 78 of the OEC is not a candidate at all, who can be validly substituted by another). C. PETITION FOR DISQUALIFICATION 3.48 ELECTION DISPUTES, GENERALLY Classification: 1. Disputes filed against the erring candidate before the election, such as a petition for disqualification, a petition to declare a
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candidate a nuisance candidate and a petition to deny due course or cancel the COC (pre-election disputes). Pre-proclamation controversies, which arise under Sect 233, 234, and 236 of the OEC and filed with the COMELEC before proclamation Post election disputes such as election protest, quo warranto, and prosecution for an election offense, either of which may result in the removal of the winning candidate.
3.49 GROUNDS FOR DISQUALIFICATIONS Sect 68 of OEC: Guilty of a) Giving money or other material consideration to influence, induce, or corrupt the voters or public officials performing electoral functions; b) Committed acts of terrorism to enhance his candidacy c) Spent in his election campaign an amount in excess of that allowed by this Code; d) Solicited, received or made any contribution prohibited under Sect 89, 95, 96, 97, amd 104 e) Violated any of Section 80, 83, 85, 86, and 261 3.50 OTHER GROUNDS FOR DISQUALIFICATION Sect 12 of OEC: a. insane or incompetent b. sentenced by final judgment for subversion, insurrection, rebellion or for any offense for which he has been sentenced to a penalty of more than 18 months or for a crime involving moral turpitude 3.51 WHEN TO FILE PETITION; ITS PURPOSE Rule 25 - Disqualification of Candidates Section 1. Grounds for Disqualification. - Any candidate who does not possess all the qualifications of a candidate as provided for by the Constitution or by existing law or who commits any act declared by law to be grounds for disqualification may be disqualified from continuing as a candidate. Sec. 2. Who May File Petition for Disqualification. - Any citizen of voting age, or duly registered political party, organization or coalition of political parties may file with the Law Department of the Commission a petition to disqualify a candidate on grounds provided by law.
Sec. 3. Period to File Petition. - The petition shall be filed any day after the last day for filing of certificates of candidacy but not later than the date of proclamation. Sec. 4. Summary Proceeding. - The petition shall be heard summarily after due notice. Sec. 5. Effect of Petition if Unresolved Before Completion of Canvass. - If the petition, for reasons beyond the control of the Commission, cannot be decided before the completion of the canvass, the votes cast for the respondent may be included in the counting and in the canvassing; however, if the evidence of guilt is strong, his proclamation shall be suspended notwithstanding the fact that he received the winning number of votes in such election. Purpose of Disqualification – to prevent the candidate from running, or if elected, from serving, or to prosecute him for violation of the election laws, for any of the grounds specified therein. 2 Aspects: 1) ADMINISTRATIVE – requires only preponderance of evidence to prove disqualification 2. CRIMINAL – requires proof beyond reasonable doubt 3.52 WHERE CANDIDATE IS A SENATORIAL OR CONGRESSIONAL CANDIDATE where the candidate involved is a senatorial or congressional candidate, the petition filed before the election to disqualify him on the ground of lack of any qualifications of for violation of an election offense under Sect 68 of the Code remains viable even after the election provided that there is yet no proclamation, and the COMELEC retains jurisdiction to continue to hear and finally resolve it Exception: when proclamation is null and void electoral tribunal assumes jurisdiction as sole judge of all issues pertaining to the election, returns and qualifications of members of Congress only when the candidate has been duly proclaimed or has become a member thereof. 3.52. WHERE CANDIDATE IS A SENATORIAL OR CONGRESSIONAL CANDIDATE The petition filed before the election to disqualify him on the ground of lack of qualifications or for violation of an election
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offense remains viable even after proclamation, provided there is yet NO proclamation COMELEC retains jurisdiction to continue to hear and finally resolve it until the candidate has duly been proclaimed After proclamation, more so if he has taken oath and assumed office, COMELEC or the SC where case is pending at the time is divested jurisdiction Losing party’s remedy is to file with the electoral tribunal a petition for quo warranto based on winner’s ineligibility or an election protest based on election fraud and irregularities Exception: COMELEC still retains jurisdiction even after proclamation and assumption when the proclamation itself is null and void Antonio v COMELEC: SC rejected argument that the proclamation of the congressional candidate divested COMELEC of jurisdiction to declare the nullity of proclamation Codilla v. de Venecia: A petition to disqualify Codilla from running as congressman was filed against him before the election for indirect solicitation of votes. The petition was not decided by COMELEC before the election. Codilla was voted for and obtained the highest number of votes. After election and before proclamation of Codilla, the 2nd division of COMELEC ordered suspension of proclamation and granted disqualification petition and directed the board of canvassers to proclaim Codilla’s opponent Mrs. Locsin as the winning candidate. Codilla filed an MR which the COMELEC en banc granted, nullified proclamation of Locsin and ordered his proclamation. The House of Rep refused to recognize him as Congressman on the ground that the proclamation and assumption of Locsin divested COMELEC en banc of jurisdiction to set aside the decision of COMELEC 2 nd division. SC rejected argument of the House, nullified Locsin’s proclamation and ordered the Speaker of the House to administer oath to Codilla. Doctrine: In a democracy, he who has been rejected by the people cannot represent the people.
3.53. DUE PROCESS REQUIREMENT The Commission cannot disqualify a candidate without hearing and affording him opportunity to adduce evidence to support his side, otherwise disqualification null and void
There should be a full-dress hearing where all interested parties should be impleaded o Where COMELEC issued a resolution disqualifying a winning candidate based merely on pleadings, without affording the candidate opportunity to be heard, constitutes a violation of due process However, where the parties agreed to submit the petition for disqualification for resolution on the basis of the pleadings and affidavits, Commission’s decision without hearing does not violate due process o Acts of terrorism are grounds for disqualification
3.54. EFFECTS OF DISQUALIFICATION CASES Section 6. Effect of Disqualification Case. - Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted. If for any reason a candidate is not declared by final judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such election, the Court or Commission shall continue with the trial and hearing upon motion of the complainant, may during the pendency thereof order the suspension of the proclamation of such candidate whenever the evidence of his guilt is strong The judgment rendered by COMELEC before the election disqualifying the candidate for any violation in Sec. 68, and where there are only two candidates for the position, the disqualified candidate is considered not a candidate at all and votes cast in his favor shall not be counted, making the other candidate the winner However, if the petition for disqualification of a candidate is not decided before the election, or even if decided, the decision has not become final before the election, votes cast for said candidate are counted and if he obtains winning votes, he is entitled to be proclaimed o Sec 6 of RA 6646: The proclamation of the candidate to be disqualified is suspended only IF there is an order of the COMELEC suspending the proclamation Due process requires that the winning candidate be given notice and opportunity to be heard, before his proclamation is suspended If the elective position is a local position, the disqualification can continue until the case is finally decided
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LAW ON ELECTIONS - AGPALO The proclamation and assumption of office of a candidate against whom a petition for disqualification is pending before the COMELEC does not divest him of his right to due process If the candidate sought to be disqualified is a congressional or senatorial candidate, the rule is that his proclamation and assumption of office divest the COMELEC of jurisdiction to continue to hear the disqualification case o The remedy of the losing candidate is either a petition for quo warranto or an election protest filed within ten (10) days from proclamation o This is premised on the assumption that the proclamation is valid The disqualification of a candidate in a particular election cannot extend to the next succeeding election o If a public official is not removed before his term of office expires, he can no longer be removed if he is reelected for another term o
3.55. WINNING CANDIDATE ENTITLED TO BE PROCLAIMED The law enjoins the Commission and the courts to decide disqualification cases speedily as possible (final judgment shall be rendered not later than seven (7) days before the election However, if for any reason a candidate is not declared before election to be disqualified and he is voted for and receives the winning number of votes, this shall not prevent his proclamation and assumption to office o The mere pendency of a disqualification case against a candidate does not justify the suspension of his proclamation after winning in the election o Doctrine: To hold otherwise would unduly encourage the filing of even an entirely baseless petition for disqualification to effect the suspension of the proclamation of the winning candidate A disqualified candidate is no candidate at all in the eyes of the law and his having received the highest number of votes does not validate his election His ouster from office does not violate the principle of vox populi sumprema est lex because the application of the provisions on disqualification is not a matter of popularity
3.56. CANDIDATE WHO PLACED SECOND IS NOT ENTITLED TO BE DECLARED ELECTED The law only authorizes a declaration of election in favor of the person who has obtained a plurality of votes and does not entitle the candidate receiving the next highest number of votes to be elected Not even the Court has authority under the law to impose and compel the people to accept a loser as their representative or political leader The candidate who obtains the second highest of votes may not be proclaimed winner in case the winning candidate is disqualified o In every election, the people’s choice is the paramount consideration and their express will must, at all times, be given effect The reason why second placer cannot be declared elected is that votes cast in favor of a candidate who obtained highest number of votes, against whom a petition for disqualification was filed before the election and decided only after the election, are presumed to have been cast in the belief that he is qualified The votes for a candidate who has been disqualified by final judgment before the election, fall under the category of invalid or inexistent votes because a disqualified candidate is no candidate at all In cases involving elective local officials, in the event the winning candidate is finally disqualified, the provision of the Local Government Code on succession will apply o Where law of succession does not apply, (ex. members of Congress), the effect of disqualification of the winning candidate is a failure of election, that is, no one is elected D. PETITION TO DECLARE NUISANCE CANDIDATE 3.57. NUISANCE CANDIDATES Sec. 69. Nuisance candidates. - The Commission may, motu proprio or upon a verified petition of an interested party, refuse to give due course to or cancel a certificate of candidacy if it is shown that said certificate has been filed to put the election process in mockery or disrepute or to cause confusion among the voters by the similarity of the names of the registered candidates or by other
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circumstances or acts which clearly demonstrate that the candidate has no bona fide intention to run for the office for which the certificate of candidacy has been filed and thus prevent a faithful determination of the true will of the electorate. Nuisance candidate is one whose certificate of candidacy is presented and filed to cause confusion among the electorate by the similarity of the names of the registered candidates o Where a candidate having the same surname as that of another against whom a petition to declare him a nuisance candidate has been filed, has been proclaimed, the petition has become moot and academic
3.58. PROCEDURE TO DECLARE A NUISANCE CANDIDATE Rule 24 of the COMELEC Rules of Procedure: Section 1. Grounds. - Any candidate for any elective office who filed his certificate of candidacy to put the election process in mockery or disrepute or to cause confusion among the voters by the similarity of the names of the registered candidates or who by other acts or circumstances is clearly demonstrated to have no bona fide intention to run for the office for which the certificate of candidacy has been filed, thus preventing a faithful determination of the true will of the electorate, may be declared a nuisance candidate and his certificate of candidacy may be denied due course or may be cancelled. Sec. 2. Who May File Petition to Declare a Candidate as Nuisance Candidate. - Any registered candidate for the same elective office may file with the Law Department of the Commission a petition to declare a candidate as a nuisance candidate. The Commission may, at any time before the election, motu proprio refuse to give due course to or cancel a Certificate of Candidacy of any candidate on any of the grounds enumerated under Section 1 of this Rule or when the substitute Certificate of Candidacy is not a proper case of substitution under Section 77 of the Omnibus Election Code. Sec. 3. Period to File the Petition. - The petition shall be filed personally or through an authorized representative, within five (5) days from the last day for the filing of certificates of candidacy. Sec. 4. Summary Proceeding. - The petition shall be heard summarily after due notice. Sec. 5. Delegation of Reception of Evidence. - The hearing and reception of evidence may be delegated in like manner as provided in Sec. 4 of the preceding Rule. E. PETITION TO CANCEL CANDIDACY
3.59. PETITION TO DENY DUE COURSE TO CANDIDACY Sec. 78. Petition to deny due course to or cancel a certificate of candidacy. - A verified petition seeking to deny due course or to cancel a certificate of candidacy may be filed by the person exclusively on the ground that any material representation contained therein as required under Section 74 hereof is false. The petition may be filed at any time not later than twentyfive days from the time of the filing of the certificate of candidacy and shall be decided, after due notice and hearing, not later than fifteen days before the election. The material misrepresentation refers to the qualifications for elective office (false statement in the certificate of candidacy as to age, residency, citizenship, being a registered voter, and other legal qualifications) A false misrepresentation must consist of a deliberate attempt to mislead, misinform, or hide a fact which would otherwise render a candidate ineligible It must be made with an intention to deceive the electorate as to one’s qualifications for public office * These two requirements must concur to warrant cancellation of the COC 3.60. REMEDY AGAINST AN INELIGIBLE CANDIDATE A candidate may be prevented from running for an elective position either because he is ineligible or he is disqualified The remedy before the election is to file petition for cancellation of his certificate of candidacy If such petition is not finally decided before the election, the COMELEC is not divested of jurisdiction to continue to hear and decide it to conclusion, and to restrain proclamation if there is strong evidence of ineligibility For local elective position: subsequent proclamation and assumption does not divest COMELEC of jurisdiction to decide petition and nullify proclamation Congressional candidate: remedies of the losing party o Petition for disqualification and move for issuance of an order by COMELEC suspending the proclamation of the winning candidate pending petition and, in event motion is denied before proclamation, file petition for certiorari in the SC with a prayer for TRO to enjoin proclamation
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Petition for quo warranto in the House Electoral Tribunal within ten (10) days after proclamation If neither of these remedies is availed of, he loses all remedies
3.61. GROUNDS THEREOF The COMELEC upon proper petition, may cancel a COC on the ground that any material representation is false In order to justify cancellation, it is essential that the false representation pertains to material matter affecting substantive rights of a candidate (right to run) The false representation must consist of deliberate attempt to mislead, misinform, or hide a fact which would otherwise render a candidate ineligible The fact that in the petition to cancel, the question of material representation has not been raised did not preclude the Commission from resolving such questions where candidate involved did not object the presentation of evidence Patent defects shown in the face of the COC may also be questioned before but not after election A petition to cancel COC may be filed on the ground that the candidate lacks any of the required qualification for office A COC which is filed beyond the prescribed period may be cancelled upon proper petition filed before the election Votes for a person who has no valid COC are stray votes and the candidate who obtained the next highest number of votes may be declared elected The verified COC usually contains the statement that the candidate has all the qualifications and none of the disqualifications provided by law Where a candidate has received popular mandate, clearly expressed, all doubts should be resolved in favor of the candidate’s eligibility The determination of the true will of the electorate should be paramount. This is the essence of democracy. 3.62. PROCEDURE AND PERIOD TO FILE PETITION QUESTIONING QUALIFICATIONS Rule 23 of the COMELEC Rules of Procedure:
Section 1. Grounds for Denial of Certificate of Candidacy. - A petition to deny due course to or cancel a certificate of candidacy for any elective office may be filed with the Law Department of the Commission by any citizen of voting age or a duly registered political party, organization, or coalition or political parties on the exclusive ground that any material representation contained therein as required by law is false. Sec. 2. Period to File Petition. - The petition must be filed within five (5) days following the last day for the filing of certificate of candidacy. Sec. 3. Summary Proceeding. - The petition shall be heard summarily after due notice. Sec. 4. Delegation of Reception of Evidence. - The Commission may designate any of its officials who are members of the Philippine Bar to hear the case and to receive evidence. Sec 7 of RA 6646 provides that the procedure laid down for declaration of a candidate as a nuisance candidate applies to petition to deny or cancel COC A petition to deny or cancel COC filed beyond required period is filed out of time and may not be entertained After the election, the remedy is a petition for quo warranto filed after proclamation with the Commission within ten days after proclamation A petition for quo warranto must be file within the stated period, otherwise it will not be entertained o However, where the ground alleged is that the candidate or the elected official is a foreigner, the petition may be filed even after said period The petition to deny or cancel a COC and a petition for quo warranto are similar o The only difference is that under Section 78, the qualifications for elective office are misrepresentation in the COC and the proceedings must be initiated before the elections o Whereas, a petition for quo warranto under Section 253 may be brought on the basis of two grounds 1. Ineligibility 2. Disloyalty to the Republic of the Philippines A candidate is ineligible if he is disqualified to be elected to office, and he is disqualified if he lacks any of the qualifications for elective office
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